Philip Mckay v Stuart Earl Greentree and Nadeen Maree Greentree [2014] NSWCATCD 69

Philip Mckay v Stuart Earl Greentree and Nadeen Maree Greentree [2014] NSWCATCD 69

Although there was no sufficient dividing fence, the Tribunal could not make the orders sought because demolition of the respondents' existing retaining wall was not proposed in the notice or application and was not fencing work, and the applicant's proposed retaining wall was too remote from the common boundary and was landscaping rather than a foundation or support necessary for a fence within the meaning of the Dividing Fences Act 1991.

Jurisdiction
Australia
Judgment Date
07 May 2014
Procedural Posture
Application to Local Land Board for an Order for Fencing Work / Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['sufficient Dividing Fence' 'retaining Wall' 'fencing Work' 'ncat Transitional Jurisdiction']
['dividing Fences' 'property Law' 'civil and Administrative Law'] ['sufficient Dividing Fence' 'retaining Wall' 'fencing Work' 'ncat Transitional Jurisdiction']

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Procedural Posture

Application to Local Land Board for an Order for Fencing Work / Principal Judgment

Legal Issues

  1. 1 ['Whether there was a sufficient dividing fence between the adjoining lands.' "Whether the existing retaining wall on the respondents' land should be demolished and removed as part of fencing work." "Whether the applicant's proposed retaining wall was a foundation or support necessary for the support or maintenance of a dividing fence within the meaning of the Dividing Fences Act 1991." 'Whether the Tribunal had power to make the fencing orders sought by the applicant.']

Ratio Decidendi

Although there was no sufficient dividing fence, the Tribunal could not make the orders sought because demolition of the respondents' existing retaining wall was not proposed in the notice or application and was not fencing work, and the applicant's proposed retaining wall was too remote from the common boundary and was landscaping rather than a foundation or support necessary for a fence within the meaning of the Dividing Fences Act 1991.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']